RIAA could bolster campaign against file sharing

Look for the Recording Industry Association of America (RIAA) to try and use Thursday’s courtroom victory in a file-sharing case in Minnesota to push those it has filed similar cases against to quickly settle, according to some legal experts.

A federal jury in Duluth, Minn., ordered Jammie Thomas of Minneapolis
to pay $222,000
to six recording companies for illegally downloading and sharing 24 music files with others over a Kazaa file-sharing network. The 12-person jury said Thomas must pay $9,250 for each of the 24 songs that were the focus of the case, the first ever of its kind to go before a trial court.

The verdict is sure to be used “as a banner by the RIAA” in its campaign against those it suspects of illegal file sharing, said Charles Mudd Jr., a Chicago-based lawyer whose firm has represented more than 100 clients in RIAA lawsuits.

“The jury verdict will add credence to and bolster the RIAA campaign of pursuing file sharers,” Mudd said. “I believe the monetary award has some significant deficiencies, but nonetheless, the jury verdict will support the RIAA in its continuing effort to pursue those it believes have illegally stolen copyrighted music,” he said.

According to Mudd, the $222,000 in damages is much higher than what many would consider to be reasonable compensation for any real damages that the recording companies might have suffered as a result of Thomas’ actions. Even when statutory damages are claimed, the threshold that is typically applied is about 10 times the actual damages caused to a plaintiff, Mudd said.

It’s unclear how the verdict will influence the thousands of similar lawsuits that the RIAA is currently pursuing against individuals, Mudd said. But a lot depends on the individual circumstances surrounding each case. For instance, several of the individuals that Mudd’s firm has represented in RIAA lawsuits denied they illegally downloaded or shared copyrighted music, he said. In cases where the forensic evidence supported that claim, it has been a relatively straightforward task getting the RIAA to drop its claims.

But where the forensic evidence shows that an individual may have been illegally sharing files, it may be far cheaper to accept the RIAA settlement offer than to try and fight it, especially in light of yesterday’s verdict, he said. “I don’t agree with the RIAA’s tactics and I don’t agree with their settlement amounts,” he said. “But paying $4,000 to settle is certainly much better than what happened in Minnesota.”

Mark Avsec, a partner at Benesch, Friedlander, Coplan and Aronoff LLP and a former member of the 1970s rock band Wild Cherry, said the verdict would have a “deterrent effect to some extent” on those inclined to indulge in illegal file sharing. “It’s going to make people think twice. It sends a message to the real flagrant file sharers that the Copyright Act is real and if you don’t settle the actions that the RIAA is vigorously pursuing, you could be liable for real significant damages.”

He also said he was not entirely surprised at the size of the jury verdict. “Once you start asserting an action under the Copyright Act, it is quite clear what you can recover in cases like this,” he said. He noted that the law provides for statutory damages of up to $30,000 per infringement.

At the same time, without some significant changes in the music industry, verdicts alone will do little to completely eliminate illegal file sharing, he said. “I can see why the RIAA is bringing suit in terms of infringement. But the labels need to look at the deeper problem. People are not going to spend $18 on a piece of plastic for one song they may want. They want better value than that.”

Ray Beckerman, a New York-based lawyer who represents several individuals in RIAA lawsuits, predicted the Minnesota verdict is likely to be set aside or overturned. “Obviously, the verdict is disproportionate in amount. When the damage you have suffered is $23.76 of song files that were infringed and you have a verdict of $222,000 that is about a 10,000-1 ratio.”

Even so, expect to see the verdict have an “emotional impact” on those dealing with RIAA litigation, he said.

“People will be afraid,” he said. “When I first spoke with them two and a half years ago, they kept talking about a case in Illinois where they had a $22,000 judgment against a woman who admitted to downloading songs illegally. For four and a half years, they have kept talking about that case because that was the only one case they ever won. The woman didn’t even contest the case really, but they kept citing that case.

“Why would they want to even mention that one anymore when they have this verdict” to talk about now, he said.